Citation Nr: 1743978	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  07-08 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability, to include as secondary to a service-connected right knee disability. 

2.  Entitlement to a rating in excess of 10 percent for chondromalacia and degenerative changes of the right knee status post postoperative for the period prior to January 20, 2011.

3.  Entitlement to a rating in excess of 30 percent for osteoarthritis of the right knee status post total right knee arthroplasty for the period on or after March 1, 2012.

4.  Entitlement to a rating in excess of 30 percent for migraine headaches, for the period prior to August 5, 2009.

5.  Entitlement to a rating in excess of 50 percent for migraine headaches, for the period on or after August 5, 2009.

6.  Entitlement to a compensable evaluation for left ankle sprain resolved with residual post traumatic arthritis. 

7.  Entitlement to an evaluation in excess of 50 percent for depression.

8.  Entitlement to an evaluation in excess of 10 percent for recurrent benign fibroma, status post excision with residual scar on the second toe of the right foot.

9.  Entitlement to a compensable evaluation for right knee scars. 

10.  Entitlement to a compensable evaluation for a laceration of the right little finger.

11.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for flat feet. 

12.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for left knee scars.

13.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a right ankle disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel



INTRODUCTION

The Veteran had active military service from June 1989 to April 1996.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2006 and November 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

In June 2013, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) to schedule a hearing.  The Veteran was scheduled for a Board hearing in August 2016, but he did not appear for the proceeding.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In November 2007, the Veteran was afforded a VA examination to determine the nature and etiology of his left knee disability.  The VA examiner diagnosed old tear medial meniscus status post-surgery and degenerative joint disease.  He opined that the Veteran's left knee condition was not caused by or related to his service-connected right knee disability.  The Board finds that this opinion is inadequate as it does not address whether the Veteran's left knee disability was aggravated by his service-connected right knee disability.  A remand is necessary to obtain an addendum VA medical opinion that addresses whether the Veteran's left knee disability was aggravated by his service-connected right knee disability.

The Board notes that this appeal has previously been remanded.  However, a recent precedential opinion from the United States Court of Appeals for Veterans Claims (Court) necessitates additional evidentiary development.  Although the Board regrets the additional delay, a remand is necessary with respect to the issue on appeal to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Since the case was last before the Board, the Court provided a precedential finding that the final sentence of 38 C.F.R. § 4.59 (2015) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).  This holding establishes additional requirements that must be met prior to finding that a VA examination is adequate.  Id.  The VA examinations of record do not adequately address this recent case law.  Accordingly, a recent VA examination with retrospective and current medical opinions is needed before the claims for increased evaluations for the Veteran's service-connected right knee disabilities can be addressed on the merits.  Id.

In a November 2013 rating decision, the Veteran was denied entitlement to a compensable evaluation for left ankle sprain resolved with residual post traumatic arthritis; entitlement to an evaluation in excess of 50 percent for depression; entitlement to an evaluation in excess of 10 percent for recurrent benign fibroma, status post excision with residual scar on the second toe of the right foot; entitlement to a compensable evaluation for right knee scars; entitlement to a compensable evaluation for a laceration of the right little finger; whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for flat feet; whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for left knee scars; and, whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a right ankle disability.
In December 2013, the Veteran filed a Notice of Disagreement (NOD) with the November 2013 rating decision.  No Statement of the Case (SOC) has been issued regarding these claims; accordingly, an SOC must be sent to the Veteran on these issues.  See Manlicon v. West, 12 Vet. App. 238 (1999).

Lastly, a review of the record indicates that the Veteran filed a claim for vocation rehabilitation benefits.  Unfortunately, the Veteran's vocation rehabilitation folder has not been associated with the record.  As these records may be pertinent to the instant appeal, a remand is required to obtain the Veteran's vocation rehabilitation folder.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's vocation rehabilitation folder.  All attempts to obtain this folder should be fully documented in the claims folder. 

If after continued efforts to obtain these records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e).  The Veteran must then be given an opportunity to respond.

2.  The AOJ should refer the case to the VA examiner who conducted the November 2007 VA examination, or another suitable examiner, if that individual is not available.  The claims folder must be made available to the examiner.  The examiner should then provide an addendum opinion, responding to the following question:

Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability was aggravated beyond its natural progression by the service-connected right knee disabilities?

The examiner must include in the examination report the rationale for any opinion expressed.  However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion.  If further examination is necessary in order to provide an opinion, such should be scheduled.

3.  Schedule the Veteran for a VA examination by an examiner with the appropriate expertise to ascertain the severity of the service-connected right knee disabilities, to include retrospectively.  The examiner must review the claims file and should note that review in the report.  

The examination report must include ranges of motion of the bilateral knees in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain.  The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner.  The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss.  The VA examiner must also provide, to the extent possible, a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the right knee since 2006, based on the findings that are otherwise available.

The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected right knee disabilities are worse than shown on some prior examinations.  The examiner should provide, to the extent possible, a retrospective medical opinion with respect to the severity of the Veteran's service-connected right knee disabilities since the Veteran underwent a VA knee examination in November 2007, based on the findings that are otherwise available.  

The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the right knee.  The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss.  The VA examiner must also provide, to the extent possible, a retrospective medical opinion addressing the functional impairment of the right knee since 2006, based on the findings that are otherwise available.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

4.  The AOJ should furnish the Veteran a SOC as to the issues of entitlement to a compensable evaluation for left ankle sprain resolved with residual post traumatic arthritis; entitlement to an evaluation in excess of 50 percent for depression; entitlement to an evaluation in excess of 10 percent for recurrent benign fibroma, status post excision with residual scar on the second toe of the right foot; entitlement to a compensable evaluation for right knee scars; entitlement to a compensable evaluation for a laceration of the right little finger; whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for flat feet; whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for left knee scars; and, whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a right ankle disability.  Only if the Veteran perfects a timely appeal by filing a Substantive Appeal should these matters be returned to the Board for the purpose of appellate disposition.

5.  Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).